Press Releases: October 2012

Government Shares Drones with Law Enforcement Agencies Across the Country

San Francisco - The Electronic Frontier Foundation (EFF) filed suit against the Department of Homeland Security (DHS) Tuesday, demanding answers about how and why it loans out its Predator drones to other law enforcement agencies across the country.

Customs and Border Protection (CBP) – a division of DHS – uses the unmanned drones inside the U.S. to patrol the borders with surveillance equipment like video cameras, infrared cameras, heat sensors, and radar. But recent news articles as well as a report from DHS itself show CBP is expanding its surveillance work, flying Predator drone missions on behalf of a diverse group of local, state, and federal law enforcement agencies – including a county sheriff's department in North Dakota, the Texas Rangers, the Bureau of Land Management, and the Department of Defense.

EFF filed a Freedom of Information Act (FOIA) request asking for more information about these drone flights, but DHS has yet to respond to the request. EFF's lawsuit asks for an immediate response, including records and logs of CBP drone flights conducted in conjunction with other agencies.

"We've seen bits and pieces of information on CBP's Predator drones, but Americans deserve the full story," said EFF Staff Attorney Jennifer Lynch. "Drones are a powerful surveillance tool that can be used to gather extensive data about you and your activities. The public needs to know more about how and why these Predator drones are being used to watch U.S. citizens."

Also on Tuesday, EFF filed a second FOIA lawsuit with the Federal Aviation Administration (FAA), demanding the latest data on certifications and authorizations the agency has issued for public drone flights in the U.S. After EFF filed its first lawsuit in January, the FAA agreed to turn over similar data, and that process is still ongoing. But the agency's slow response has meant that much of the information is outdated long before EFF receives it, and without a new request, records from most of 2012 would not be included.

"FAA's foot-dragging means we can't get a real-time picture of drone activity in the U.S.," said Lynch. "If officials could release their records in a timely fashion – or publish it as a matter of routine on the FAA website – we could stop filing these FOIA requests and lawsuits."

Join the New Open Wireless Movement

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of nine other groups launched the Open Wireless Movement today – a new project to promote a landscape of shared, wireless Internet.

"We envision a world where sharing one's Internet connection is the norm," said EFF Activist Adi Kamdar. "A world of open wireless would encourage privacy, promote innovation, and benefit the public good, giving us network access whenever we need it. And everyone – users, businesses, developers, and Internet service providers – can get involved to help make it happen."

The Open Wireless Movement site at openwireless.org gives users of all kinds technological and legal information around opening up a wireless network, including how-to guides and responses to common myths. The site includes specialized information for households, small businesses, developers, and Internet Service Providers. The Open Wireless Movement coalition is also working to develop router technology making it easier for people open their networks without losing quality of Internet access or compromising security.

"The frustrating thing about wireless networks today is that they're everywhere – there can be dozens of them bouncing around you at any given instant – but you're locked out of almost all of them," said EFF Technology Projects Director Peter Eckersley. "We realized that the Internet would work much better, and many amazing new kinds of devices would be possible, if just a small fraction of them could be opened. So we started a movement to make that happen"

The Open Wireless Coalition consists of the Electronic Frontier Foundation, Fight for the Future, Free Press, Internet Archive, NYCwireless, the Open Garden Foundation, OpenITP, the Open Spectrum Alliance, the Open Technology Institute, and the Personal Telco Project.

EFF Backs New York-Based Aereo TV in Battle to Stay in Business

New York - The Electronic Frontier Foundation (EFF) urged a federal appeals court Friday not to shut down Aereo, a startup that lets customers send local broadcast television to Internet-connected devices, arguing that consumers have the right to watch free broadcast TV with the technology of their choice.

Broadcasters and TV networks – including ABC, Fox, Univision, Disney, CBS, NBC, and PBS – sued Aereo for copyright infringement in March, claiming that Aereo should be paying them license fees. The trial court declined to shut Aereo down during the lawsuit, and the broadcasters appealed. Now, the appeals court will decide whether Aereo can stay open while the case goes forward. EFF, along with Public Knowledge and the Consumer Electronics Association (CEA), filed a friend of the court brief Friday, asking the appeals court to reject the networks' bogus copyright claims and protect the rights of consumers.

"Just because Aereo's system sends TV signals to customers doesn't mean that Aereo needs permission from the broadcasters," said EFF Staff Attorney Mitch Stoltz. "Personal TV transmissions don't violate copyright – it's a private use that copyright law doesn't reach. This is just a craven attempt by TV executives to profit from technology that they didn't think of first."

Aereo's system works with thousands of dime-sized antennas installed on a Brooklyn rooftop. Each customer is assigned a single antenna that he or she can control, and the signal from that antenna travels over the Internet to the customer's devices. Aereo has explained in court that it simply takes the place of "rabbit ears" or a rooftop antenna, but the networks argued that Aereo should be treated like a cable system that must get permission from and pay fees to broadcasters.

In deciding not to shut Aereo down pending trial, Judge Alison Nathan of the Southern District of New York said that Aereo's system was similar to another technology that survived a court challenge: Cablevision's "remote DVR" system, which in 2008 was found not to infringe copyright law. Like Aereo, Cablevision took equipment that customers traditionally put in their homes – in that case, digital video recorders – and moved them to the company's offices. Judge Nathan ruled that the appeals court's decision in the Cablevision case also applied to Aereo.

"Broadcasters have exclusive use of a scarce public resource – the airwaves – and that privilege carries with it a responsibility to serve the public. Obviously, the public benefits by having alternative ways to enjoy TV content," said EFF Intellectual Property Director Corynne McSherry. "Judge Nathan reached the right result and we hope the appeals court does too."

EFF co-wrote its brief with John Bergmayer and Sherwin Siy of Public Knowledge.

Copyright Office Announces Exemptions to Mitigate DMCA Harms

San Francisco - The Electronic Frontier Foundation (EFF) won renewal of critical exemptions to the Digital Millennium Copyright Act (DMCA) in a ruling published today, including the upholding of jailbreaking rights for smartphones as well as new and expanded legal protections for video remixing.

"The DMCA creates a cloud of legal uncertainty over American consumers – whether they are tinkerers, artists, or just looking to make their gadgets work better," said EFF Intellectual Property Director Corynne McSherry. "The ruling from the Copyright Office today goes a long way towards mitigating some of the DMCA's most grievous harms."

Crucial support for the successful request on behalf of video remix artists – carving out new legal protection for this important art form – was provided by the Organization for Transformative Works (OTW). The OTW gathered evidence and presented testimony about the DMCA's adverse impact on several communities of remix creators, who use short clips from movies to build new creative works. The Copyright Office's decision broadens EFF's previously successful exemption request, which allows for taking short excerpts from DVDs in creating noncommercial works, by also protecting the use of clips from online streaming or downloading services.

"Remix videos are thriving on YouTube and other sites, offering dynamic criticism and commentary on popular movies as well as popular culture. It's a great example of how new technologies foster free expression, yet the anti-circumvention provisions of the DMCA endanger these important works," said McSherry. "We're thrilled that the Copyright Office broke new ground in protecting remix artists. We can't let misguided federal law block a new form of art and expression."

The Copyright Office also renewed EFF's exemption request that protects smartphone jailbreaking, liberating phone owners to run operating systems and applications from any source, not just those approved by the manufacturer. However, the Copyright Office declined to expand that exemption to tablets and video game consoles, arguing that the category of "tablets" is not well defined and that jailbreaking video game consoles might lead to more copyright infringement.

"If you bought your gadget, you own it, and you should be able to install whatever software you please without facing potential legal threats," said EFF Senior Staff Attorney Marcia Hofmann. "We're pleased the Copyright Office renewed our smartphone jailbreaking exemption request, but we're disappointed that it couldn't see that consumers deserve the same rights for all the gadgets they own. We'll be back with more exemption requests in the next rulemaking, and we're hopeful the Copyright Office will keep moving in the right direction."

The Copyright Office's rulemaking process is conducted every three years in order to mitigate the danger the DMCA poses to legitimate, non-infringing uses of copyrighted materials. The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to control access to copyrighted works. While the DMCA still chills competition, free speech, and fair use, today's exemptions help give consumers and artists protection from the law's extensive reach.

EFF would like to acknowledge the invaluable assistance of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, in drafting the jailbreaking exemption requests.

Warrant Materials Sought to Help Innocent Party Regain His Property

Alexandria, VA - The Electronic Frontier Foundation (EFF), on behalf of its client Kyle Goodwin, asked a federal court yesterday to unseal warrant-related documents surrounding the loss of access to Mr. Goodwin's data after the government shut down Megaupload.com. Goodwin used Megaupload's cloud-based storage system for his small business reporting on high school sporting events in Ohio. The site's servers housing Mr. Goodwin's data were frozen as part of a government seizure in January of this year—since then, Mr. Goodwin and others like him have had no access to their data.

Mr. Goodwin has consistently asked the court for the return of his property. In response, the court recently asked Mr. Goodwin and the government to provide additional information on how such a hearing might proceed.

"The government engaged in a overbroad seizure, denying Mr. Goodwin access to his data, along with likely millions of others who have never been accused of wrongdoing," said Julie Samuels, EFF Staff Attorney. "Access to the government's warrant application and related materials can help us learn how this could have happened and provide assistance in our efforts to get Mr. Goodwin his property back."

In running his small business, Goodwin stored video footage on Megaupload servers as a backup to his hard drive and so he could share those large files with his producers all over Ohio. Earlier this year, the FBI shut down Megaupload.com and executed search warrants on the company's servers, locking out all Megaupload customers in the process. When Goodwin's hard drive crashed, he could not get access to any of his own video files, which he needed to conduct his business.

"Unsealing the court documents in this case is not only important to Mr. Goodwin, it is critical to the ongoing public and Congressional debate about the U.S. government's increasing use of its seizure power in intellectual property cases," added Cindy Cohn, EFF's Legal Director. "A court in New Zealand recently upbraided the authorities who conducted similar seizures for failing to protect innocent people whose property was obviously likely to be swept up. The questions raised by the New Zealand court about overbroad seizures should also be asked, and answered, here in the U.S."

EFF was assisted by co-counsel Abraham Sofaer of the Hoover Institution and John Davis of Williams Mullen.

San Francisco - The Electronic Frontier Foundation (EFF) and EarthRights International (ERI) asked judges in California and New York today to quash subpoenas issued by Chevron Corporation to three email providers demanding identifying information about the users of more than 100 email accounts, including environmental activists, journalists, and attorneys. The information Chevron wants could be used to create a detailed map of the individuals' locations and associations over nearly a decade.

The subpoenas are the latest salvo in the long-running battle over damage caused by oil drilling in Ecuador. After years of litigation, an Ecuadorian court last year imposed a judgment of over $17 billion on Chevron for dumping toxic waste into Amazon waterways and causing massive harm to the rainforest. Instead of paying, Chevron sued more than 50 people who were involved in the Ecuador lawsuit, claiming they were part of a conspiracy to defraud the oil giant. None of the individuals represented by EFF and ERI has been sued by Chevron or accused of wrongdoing.

"Environmental advocates have the right to speak anonymously and travel without their every move and association being exposed to Chevron," said Marcia Hofmann, EFF Senior Staff Attorney. "These sweeping subpoenas create a chilling effect among those who have spoken out against the oil giant's activities in Ecuador."

The motions to quash filed today asked the courts to reject the subpoenas, pointing out that anonymous speakers who are not parties in a lawsuit receive particularly strong First Amendment protections. EFF first won court recognition of this protection in Doe v. 2theMart.com in 2001. Chevron's subpoenas also violate the legal protections for the right of association for political action that were developed during the civil rights era.

"The courts have long recognized that forcing activists to reveal their names and political associations will chill First Amendment rights and can only be done in the most extreme situations," added Marco Simons, Legal Director of ERI, which has provided legal assistance to third parties affected by the Chevron litigation in two international proceedings. "We look forward to having those longstanding principles applied in this case so that people can engage in journalism and political activism and assist in litigation against environmental destruction without fear that their identities and personal email information will be put at risk."

EFF and ERI are challenging the subpoenas to Google and Yahoo! in the U.S. District Court for the Northern District of California and the subpoena to Microsoft in the U.S. District Court for the Northern District of New York. Peter Henner is local counsel working with EFF and ERI in New York.

Contacts:

About EFF:

The Electronic Frontier Foundation is the leading organization protecting civil liberties in the digital world. Founded in 1990, we defend free speech online, fight illegal surveillance, promote the rights of digital innovators, and work to ensure that the rights and freedoms we enjoy are enhanced, rather than eroded, as our use of technology grows. EFF is a member-supported organization. Find out more at https://www.eff.org.

About ERI:

EarthRights International is a nonprofit, nongovernmental organization that uses legal and advocacy tools to defend human rights and the environment. We specialize in fact-finding, legal actions against perpetrators of abuses, training for grassroots and community leaders, and advocacy campaigns that seek to end environmental and human rights abuses. To learn more, including ERI’s involvement in other aspects of the Chevron litigation, please visit: http://www.earthrights.org.

Home Movie of Toddler Dancing to Prince Song Sparked Bogus Copyright Claim

San Jose, CA - On Tuesday, October 16, at 3 p.m., the Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose, California to rule that Universal Music Corp. violated the law when it sent YouTube a takedown demand over a home movie of a toddler dancing to a Prince song.

Tuesday's oral argument is in Lenz v. Universal, a case that started back in 2007, when Stephanie Lenz first posted the video to share with family and friends. In the 29-second clip, Lenz's young son is dancing in the family kitchen to "Let's Go Crazy," which is playing on a stereo in the background. Remarkably, Universal Music Publishing Group claimed that the video violated copyright law, and had the video yanked from YouTube.

Lenz fought back with the help of EFF, filing a lawsuit asking the court to hold Universal accountable for YouTube to take down her fair use. In a key victory early in the case, the court held that content owners must consider fair use before sending copyright takedown notices.

In Tuesday's hearing, EFF Intellectual Property Director Corynne McSherry will ask the court to grant Lenz's motion for summary judgment in this case and rule that Universal's takedown was improper and an abuse of the Digital Millennium Copyright Act (DMCA).

"Parents are allowed to document and share moments of their children's lives on a forum like YouTube, and they shouldn't have to worry if those moments happen to include some background music," said McSherry. "Content companies need to be held accountable when their heavy-handed tactics squash fair use rights. We hope the judge gives Ms. Lenz the closure she deserves, and shows content owners they can't trample over users' rights."

WHAT:
Lenz v. Universal

WHEN:
Tuesday, October 16
3 p.m.

WHERE:
United States District Court, Northern District of California
Courtroom 3, 5th Floor
280 South 1st Street
San Jose, CA 95113